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Hastings Journal

Volume 59 | Issue 3 Article 6

1-2008 Facing up to Wrongful : Broadly Defining "New" at the Gateway Jay Nelson

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Recommended Citation Jay Nelson, Facing up to Wrongful Convictions: Broadly Defining "New" Evidence at the Actual Innocence Gateway, 59 Hastings L.J. 711 (2008). Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss3/6

This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Facing up to Wrongful Convictions: Broadly Defining "New" Evidence at the Actual Innocence Gateway

JAY NELSON*

INTRODUCTION The recent rise of DNA has increased Americans' awareness that our criminal justice system condemns innocent people for they did not commit.' The continued legitimacy of our justice system depends on the resolve with which we address this failing. The writ of habeas corpus is a time-honored mechanism for remedying unjust incarcerations! Claims of actual innocence arise in habeas proceedings in two main ways. First, prisoners assert "substantive" innocence claims under the Fifth, Eighth, and Fourteenth Amendments. In these petitions, prisoners argue that because they are factually innocent of the crimes for which they were convicted, their incarcerations violate due process and the ban on cruel and unusual punishment. The second type of actual innocence claim is known as a "gateway" claim. In gateway claims, the prisoner asserts actual innocence in order to obtain review of a procedurally defaulted habeas petition. A petition is procedurally barred if it is "successive" or "abusive."3 A petition is successive if it raises claims identical to claims that were denied on the

* J.D. Candidate, University of California, Hastings College of the Law, 2008. 1 am grateful to Professors Aaron Rappaport and Rory Little for their suggestions. I would also like to thank Lynn Combs, my family, and of course my wife Jisun. i. ABA CRIMINAL JUSTICE SECTION'S AD Hoc INNOCENCE COMMITTEE TO ENSURE THE INTEGRITY OF THE CRIMINAL PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY, at xv (Jack Hanna ed., 2o06) (noting that the escalating number of DNA exonerations "undermines the assumption that the criminal justice system our nation has so proudly developed sufficiently protects the innocent"). 2. At the founding of the nation, for example, in The Federalist No. 84, Alexander Hamilton echoed Blackstone's belief that the writ of habeas corpus provides critical protection for individual rights in light of the fact that "the practice of arbitrary , have been, in all ages, the favorite and most formidable instruments of tyranny." THE FEDERALIST No. 84, at 213 (Alexander Hamilton) (Maria Burwell ed., 2003). 3. See Schlup v. Delo, 513 U.S. 298,318 (995).

[71 HASTINGS LAW JOURNAL [Vol. 59:711 merits in a previous habeas petition.' A petition is abusive if it raises claims that could have been raised on appeal or in a previous petition but were not.' A prisoner may also default by failing to comply with the applicable statute of limitations. Normally, a prisoner may only obtain review of a procedurally barred petition if he is able to demonstrate good cause and prejudice.7 In capital cases, the Supreme Court has carved out an equitable exception to the cause-and-prejudice requirement. In Murray v. Carrier, the Court held that "in an extraordinary case, where a constitutional violation has probably resulted in the of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.",8 This exception recognizes that incarcerating the innocent works a "fundamental ."9 In short, by demonstrating actual innocence, a prisoner may pass through the actual innocence "gateway" and receive review of his procedurally barred claim. In Schiup v. Delo,'° the Supreme Court articulated the standard for determining whether a prisoner may pass through the actual innocence gateway. The Court held that in order to establish actual innocence, the prisoner must demonstrate that in light of "new reliable evidence.., that was not presented at ," it is more likely than not that no reasonable juror would vote to convict." In House v. Bell, the Supreme Court found a gateway petitioner innocent for the first time." Neither Schiup nor House provided the Court with an opportunity to define exactly what qualifies as "new" evidence. Because the Supreme Court has not defined "new," the circuit courts of appeals have arrived at different definitions. Some circuits adopt an inclusive formulation. These circuits permit habeas courts to evaluate all reliable evidence that was not presented to the finder of fact, even if the evidence would have been available at trial through the exercise of . This Note refers to these circuits' rule as the "newly-presented" evidence rule. Other circuits adopt a more restrictive interpretation. These circuits hold that habeas courts may only review evidence if it was discovered

4. Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986). 5. Id. (quoting Sanders v. United States, 373 U.S. 1, 17-19 (1963)). 6. See 28 U.S.C. § 2244(d)(I) (2ooo) (providing a one-year limitations period for state prisoners to file a federal habeas petition). 7. Wainwright v. Sykes, 433 U.S. 72, 97 (I977). 8. 477 U.S. 478, 496 (1986). 9. Id. I0. 513 U.S. 298 (1995). it. Id. at 324, 326-27 (emphasis added). 12. 126 S. Ct. 2064, 2o83 (2oo6). February 2008] FACING UP TO WRONGFUL CONVICTIONS post-conviction, and if it could not have been discovered prior to trial through the exercise of due diligence. This formulation bars reviewing courts from evaluating any evidence which was available at the time of trial but was not admitted due to the actions of counsel, the petitioner, or the trial judge. This Note refers to these circuits' rule as the "newly-discovered" evidence rule. This Note argues that the federal courts should adopt the newly- presented rule rather than the newly-discovered rule. The newly- presented rule strikes an evenhanded balance between petitioners' rights and notions such as federal-state comity, judicial economy, and the finality of judgments. The newly-presented rule permits habeas courts to meaningfully review petitioners' actual innocence claims while also protecting the federal courts from abusive litigation. Accordingly, the newly-presented rule is in harmony with the values underpinning our criminal justice system and should be uniformly adopted. Part I of this Note examines the problem of wrongful convictions that afflicts our criminal justice system. Part II summarizes the current state of habeas corpus law with respect to claims of actual innocence. Part III argues that the federal courts should adopt the newly-presented evidence rule for three reasons: (I) the newly-presented rule meaningfully accounts for the problems that attend real-world wrongful convictions; (2) the rule is in harmony with our structure of government; and (3) the rule is consistent with the language and rationale of Schlup and House. Part IV concludes that the newly-presented rule is necessary to preserve our deep-seated notions of individual liberty.

I. THE EMERGING PROBLEM OF WRONGFUL CONVICTIONS It is a bedrock principle of American law that we would rather free the guilty than convict the innocent.'3 Unlike the inquisitorial systems of Continental Europe, our adversarial system erects numerous protections for the accused.'" Indeed, "[n]o principle is more firmly established in our system of criminal justice than the that is accorded to the in every criminal trial."'5 Despite this emphasis on protecting the innocent, Americans are increasingly aware that some wrongly convicted people occupy our prisons. Numerous case studies reveal the grim details of innocent people

13. See In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("[It is] a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."). 14. Felicity Nagorcka et al., Stranded Between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and InquisitorialSystems of Justice, 29 MELB. U. L. REV. 448, 462 (2oo5) (noting that through the use of "strict evidential and procedural boundaries," adversarial systems place greater value on the protection of the individual than inquisitorial systems). 15. Kentucky v. Whorton, 441 U.S. 786, 790 (I979) (Stewart, J., dissenting). HASTINGS LAW JOURNAL [Vol. 59:7I11

convicted of crimes they did not commit." Fortunately, in recent years,7 a handful of wrongly convicted prisoners have obtained exonerations. Despite this encouraging trend, the percentage of wrongfully convicted people who attain is very small. According to Lawrence Marshall, only one in three exonerated prisoners achieves his freedom through the "normal course" of appellate and habeas review rather than the fortuitous, post-conviction of . ' It is therefore unclear how many innocent people fill our prisons because they lack the extraordinary resources or good luck necessary to establish actual innocence under the current state of the law. A number of studies estimate the scope of the wrongful conviction problem. C. Ronald Huff estimates that between 7,500 and io,ooo innocent people are sent to prison every year.'9 Another study suggests the figure is as high as 14,000.2 Still others provide chilling figures for the wrongful conviction rate in cases' and the "serious error" rate in capital cases.2 It is outside the scope of this Note to debate the methodological strengths and weaknesses of such studies. What is clear is that our criminal justice system routinely convicts untold numbers of innocent people. 3

16. See generally MICHAEL L. RADELET ET AL., IN SPITE OF INNOCENCE (1992); BARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2ooo); BARRY SCHECK ET AL., ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND How TO MAKE IT RIGHT (2003) [hereinafter SCHECK, JUSTICE]; MARTIN YANT, PRESUMED GUILTY: WHEN INNOCENT PEOPLE ARE WRONGLY CONVICTED (1991). I7. Three hundred forty people obtained post-conviction exoneration between 1989 and 2003. Samuel Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 524 (2005). To date, at least 210 people have been exonerated through post- conviction DNA testing alone. The , http://www.innocenceproject.org/Content/35 i.php (last visited Jan. 1, 2008). i8. Lawrence Marshall, Do Exonerations Prove That "The System Works?," 86 JUDICATURE 83, 84 (2002). obtain exoneration most frequently only if (I) the real guilty party steps forward, (2) compelling new evidence impeaches the prosecution's , or (3) DNA testing exculpates the defendant. Id. at 84, 86-87. 19. See RONALD HUFF ET AL., CONVICTED BUT INNOCENT 65 (1996) (estimating that approximately io,ooo people are erroneously convicted each year); Ronald Huff, Wrongful Conviction and Public Policy: The American Society of Criminology 20oi PresidentialAddress, 40 CRIMINOLOGY I, 2 (2002) (suggesting that 7,500 people were wrongfully convicted in 2000). 2o. Ayre Rattner, Convicted but Innocent: Wrongful Conviction and the CriminalJustice System, 12 LAW & HUM. BEHAV. 283, 285 (1988) (citing a 1964 study that estimated a 5% erroneous conviction rate that results in 14,000 wrongful convictions each year). 2t. Tony G. Poveda, Estimating Wrongful Convictions, 18 JUST. Q. 689, 697 (2ooi) (finding a 1.4% wrongful conviction rate in murder cases). In 2002, there were 8,99o murder convictions in state courts. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, BULLLETIN: SENTENCES IN STATE COURTS, 2002, at 2 (2004), available at http://www.ojp.usdoj.govfbjs/pub/pdf/fssco2.pdf. Applying Poveda's error rate to this figure, approximately 125 murder defendants were wrongfully convicted in 2002. 22. James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, r973-i995, 78 TEX. L. REV. 1839, 1850 (2000) (identifying a 68% "serious error" rate in capital cases nationwide). 23. See, e.g., SCHECK, JUSTICE, supra note 16, at 249 (noting that the "DNA era has shaken the February 2008] FACING UP TO WRONGFUL CONVICTIONS

With some exceptions, the federal and state judiciaries have been largely unmoved by the data on wrongful convictions. There are numerous reasons why the courts are reluctant to recognize a serious wrongful conviction problem. Many skeptics argue that the estimated number of innocent prisoners is inflated, or that the wrongful conviction of several thousand people does not present a serious problem.24 Justice Antonin Scalia has argued that the increase in exonerations over the past decade suggests that the system works, rather than that it is broken. 5 Many judges are also likely hesitant to test the public's confidence in our justice system by acknowledging that the courts are capable of convicting a large number of innocent people." Legislative and executive bodies, however, have enacted a variety of reforms in response to the wrongful conviction problem. For example, data on innocent convictions have influenced the adoption of bans and moratoria in some states. 7 Almost all states have passed granting access to post-conviction DNA tests for certain classes of defendants." In order to ensure the effective and accurate use of DNA testing, many states have passed laws that mandate the retention and preservation of DNA evidence. 9 Some state attorneys general have adopted the so-called "double-blind" eyewitness identification procedure to reduce the number of false identifications.3° Many states have sought

foundations of the system" so profoundly that "[t]he strong presumption that are correct has been weakened"); George C. Thomas III et al., Is It Ever Too Late for Innocence? Finality, Efficiency, and Claims of Innocence, 64 U. PITT. L. REV. 263, 273 (2003) ("[Even if the system screens out most of the innocent , a small error rate means that large numbers of real people, real innocents, convicted of , remain in the system."). 24. See, e.g., Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem?, 2006 Wis. L. REV. 739,743. 25. Kansas v. Marsh, 126 S. Ct. 2516, 2536 (2oo6) (Scalia, J., concurring) ("Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success."). 26. James S.Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2132 (2000) ("[W]rongful convictions, and retrials and appeals... cost taxpayers millions of dollars [and]... foster[] a corrosive distrust in [the judiciary]."). 27. See John Wagner & Ovetta Wiggins, O'Malley Seeks End to Md. Executions: Death Penalty Repeal Splits Assembly, WASH. POST, Feb. 22, 2007, at 16; Am. Bar Ass'n, ABA Death Penalty Moratorium Implementation Project, http://www.abanet.org/moratorium/faq.html#a6 (last visited Jan. 1. 2008) (noting Illinois moratorium); Death Penalty Information Center, http://www.deathpenalty info.org/state/ (providing state-by-state information including states that prohibit the death penalty and the number of innocence exonerations per state). 28. See, e.g., CAL. PEN. CODE § 1405 (West 2005) (DNA testing for all felons); NEv. REV. STAT. § 176.O918 (1996) (DNA testing for capital defendants); of 2004, 18 U.S.C. § 3600 (DNA testing for all persons convicted of a federal crime). 29. For a thorough bibliography of state retention statutes, see Nathan T. Kipp, Comment, Preserving Due Process: Violations of Wisconsin DNA Evidence Preservation Statutes as Per Se Violations of the Fourteenth Amendment, 2004 Wis. L. REV. 1245 , 1256 n.73. 30. See, e.g., N.J. DEP'T OF LAW AND PUB. SAFETY, OFFICE OF THE ATr'Y GEN., GUIDELINES FOR PREPARING AND CONDUCTING PHOTO AND LIVE LINEUP IDENTIFICATION PROCEDURES (2001), available at http://www.state.nj.us/1ps/dcj/agguide/photoid.pdf (following letter from the New Jersey Attorney HASTINGS LAW JOURNAL [Vo1. 59:7 11 to reduce the number of false confessions by requiring officers to electronically record interrogations.' Other reforms include crime lab oversight measures," exoneree compensation statutes,33 and independent innocence commissions to investigate non-frivolous claims of actual innocence.34

II. JUDICIAL TREATMENT OF ACTUAL INNOCENCE CLAIMS UNDER FEDERAL HABEAS CORPUS LAW As noted above, substantive and gateway actual innocence claims differ in significant ways. Substantive claims assert that because the prisoner is factually innocent of the crime, the petitioner's incarceration substantively violates the Constitution. Although the Supreme Court has never reversed a conviction on substantive grounds, the remedy in such a case would likely be unconditional release from custody. In Herrera v. Collins, the leading substantive innocence decision, the petitioner sought habeas relief from a death .35 In support of his claim of innocence, Herrera presented newly acquired affidavits which tended to show that Herrera's brother, rather than Herrera, committed the murder at issue.36 Although the Supreme Court indicated that a "truly persuasive" showing of actual innocence may warrant habeas relief under substantive constitutional provisions, the Court ruled that Herrera's affidavits failed to meet this high standard.37 Accordingly, the Court affirmed Herrera's death sentence.' Unlike Herrera petitioners, gateway petitioners do not assert bare innocence claims. Instead, gateway prisoners allege constitutional defects at trial such as ineffective assistance of counsel. These petitioners assert actual innocence because they are unable to show good cause for procedurally defaulting on their constitutional claims. They therefore seek to avail themselves of the miscarriage of justice exception to the ban on procedurally defaulted petitions. The ultimate goal of a gateway claim

General outlining that New Jersey's plan for the double-blind procedure); Wis. DEP'T OF JUSTICE, OFFICE OF THE AT'Y GEN., MODEL POLICY AND PROCEDURE FOR EYEWITNESS IDENTIFICATION (2005), available at http://www.doj.state.wi.us/dles/tns/EyewitnessPublic.pdf (adopting the double-blind for investigations in Wisconsin). 31. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2006); State v. Scales, 518 N.W. 2d 587 (Minn. 1994). 32. See, e.g., H.B. io68, 2005 Leg., 79th Sess. (TEX. 2005); Montana SB 768. 33. The Innocence Project compiled an exhaustive list of these statutes, which is available at http://www.innocenceproject.org/docs/Bernhard-Charto131 o6.pdf. 34. S. Res. 44, - Leg., - Sess. (Cal. 2004) (creating the California Commission on the Fair Administration of Justice); N.C. GEN. STAT. § 15A-I462 (West 2005 & Supp. 2007) (establishing North Carolina's Actual Innocence Commission). 35. 506 U.S. 390, 393 (1993). 36. Id. 37. Id. at 418-19. 38. Id. at 419. February 2008] FACING UP TO WRONGFUL CONVICTIONS is to obtain review of the petitioner's underlying constitutional claim. The remedy for a successful gateway claim is not release from custody, but review of the petitioner's otherwise barred habeas petition. In Schlup, the petitioner was convicted of murdering a fellow inmate in a Missouri state prison.39 Schlup filed a petition for a writ of habeas corpus, in which he alleged ineffective assistance of counsel.4' The reviewing court denied the petition as procedurally barred.' In a second habeas petition, also procedurally barred, Schlup renewed his ineffective assistance claim and introduced an actual innocence miscarriage of justice argument.' Schlup supported his actual innocence claim with affidavits from newly discovered witnesses who testified that Schlup did not commit the murder at issue.43 In evaluating Schlup's petition, the Supreme Court held that in order to satisfy the threshold showing of actual innocence, the prisoner must demonstrate that, in light of "new reliable evidence.., that was not presented at trial," it is more likely than not that no reasonable juror would vote to convict.' The Schlup Court provided no explicit guidance regarding what evidence qualifies as "'new." The Supreme Court reaffirmed the holding of Schlup in House v. Bell.45 In House, the Court permitted a petitioner to pass through the actual innocence gateway for the first time. 46 House based his innocence claim on several pieces of newly-discovered evidence, including exculpatory witnesses, DNA testing, and other forensic evidence.47 The Court concluded that although House did not conclusively establish his innocence, he represented a rare case in which, due to the weight of the evidence discovered post-conviction, no reasonable juror would lack as to his .8 Similar to Schlup, House involved newly-discovered rather than newly-presented evidence. As such, the case did not present the Supreme Court with an opportunity to endorse either the newly-discovered or the newly-presented evidence rule.49

39. Schlup v. Delo, 513 U.S. 298, 305 (1995). 40. Id. at 306. 41. Id. 42. Id. at 307. 43. Id. 44- Id. at 324, 327. 45. 126 S. Ct. 2064, 2077-78 (2oo6). 46. Id. at 2086. 47. Id. 48. Id. 49. See id. at 2086-87. HASTINGS LAW JOURNAL [Vo1. 59:711I

A. THE CIRCUIT COURTS OF APPEALS DISAGREE REGARDING WHAT FORMS OF "NEW" EVIDENCE PETITIONERS MAY PRESENT FOR REVIEW IN GATEWAY CLAIMS The circuit courts of appeals disagree regarding what the Supreme Court means by "new" evidence in the context of gateway claims. On the one hand, it is possible to infer from Justice Stevens's majority opinion in Schlup that he intended to admit all newly-presented evidence, regardless of whether the evidence was available at the time of trial." Justice Stevens conspicuously employed the word "presented" rather than the word "discovered." 5' Similarly, the majority in House appeared to endorse liberal evidentiary rules for gateway petitions. Building on language found in Schlup, Justice Kennedy's majority opinion stressed that in evaluating gateway claims, a habeas court's inquiry is not limited solely to "new reliable evidence ... that was not presented at trial."52 Justice Kennedy did not expound, however, on what the limits are. On the other hand, it is possible to interpret Schlup as implying a newly-discovered rule. Because Schlup's affidavits contained from witnesses who were discovered after Schlup was convicted, the facts of Schlup limit the Court's holding to newly-discovered evidence. 3 The same is true of House v. Bell.54 In addition, Justice O'Connor's concurring opinion in Schlup suggests that she intended the decision to only permit newly-discovered evidence, based on her use of the word "discovered" rather than the word "presented."" As a result of this ambiguity, the circuit courts of appeals have adopted different definitions of "new." Some circuits allow petitioners to submit all evidence which was not presented to the fact finder, regardless of whether the evidence was available for trial. Other circuits restrict review to evidence discovered after the petitioner's conviction. The courts that permit all newly-presented evidence rely largely on the language of Schlup to support their conclusion. First, they look to the Schlup Court's choice of words. For example, the Seventh Circuit examined the text of Justice Stevens's majority opinion and concluded that, because the decision employed the word "presented" rather than the word "discovered," "[ajll Schlup requires is that the new evidence is reliable and that it was not presented at trial." 6 In the absence of an explicit directive to the contrary, the Seventh Circuit declined to "consider the absence of a newly 'discovered' requirement in Schlup a

50. See Schlup v. Delo, 513 U.S. 289, 324 (1995). 51. Id. 52. House, 126 S. Ct. at 2077 (citing Schlup, 513 U.S. at 324). 53. See Schlup, 513 U.S. at 308 n.i8. 54. House, 126 S. Ct. at 2086. 55. Schlup, 513 U.S. at 332 (O'Connor, J., concurring). 56. Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). February 2008] FACING UP TO WRONGFUL CONVICTIONS mere oversight."57 Similarly, the Ninth Circuit concluded that although Justice O'Connor's concurring opinion in Schiup would require newly- discovered evidence, the use of the word "presented" in Justice Stevens's opinion suggests that "a habeas petitioner may pass through the Schiup gateway without 'newly discovered' evidence if other reliable evidence is offered 'that was not presented at trial."'' 8 The courts that adopt the newly-presented rule identify a second source of textual support for their position. They cite the Schiup Court's favorable reference to Judge Henry J. Friendly's argument that habeas courts should review "'all evidence, including that alleged to have been admitted illegally . . . and evidence tenably claimed to have been wrongfully excluded or to have become available only after the trial."'59 For example, the Ninth Circuit concluded that Schlup's reference to Judge Friendly's article weighed strongly in favor of the newly-presented rule.6° Likewise, the district court in Garcia v. Portuondo cited the Schlup Court's reference to Judge Friendly in concluding that it did "not understand 'new' evidence to be limited to that unavailable at trial, so6 long as it is evidence that the original fact finder did not then consider.", , Other circuits adopt the newly-discovered evidence rule. The Eighth Circuit, for example, noted in an early to define "new" evidence that "[p]utting a different spin on evidence that was presented to the jury does not satisfy the requirements set forth in Schlup.' '62 In a later case, without explanation, the Eighth Circuit expanded this holding into a bright-line rule that "evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due ' 6 diligence. , ' The Eighth Circuit has adhered to this definition in later cases.6 The Third Circuit defends its newly-discovered rule on the grounds of judicial economy and the finality of judgments. In Hubbard v. Pinchak, the prisoner attempted to introduce his own testimony as new evidence, even though he was available during trial and did not testify.6

57. Id. 58. Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003). 59. See Schlup, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on CriminalJudgments, 38 U. CHi. L. REV. 142, 160 (970)); Griffin, 350 F.3d at 961-62. 60. Griffin, 350 F.3 d at 961-62. 6I. Garcia v. Portuondo, 334 F. Supp. 2d 446, 454 (S.D.N.Y. 2004). 62. Bannister v. Delo, ioo F.3d 6io, 618 (8th Cir. 1996) (quoting Bannister v. Delo, 904 F. Supp. 988, 1o04 (W.D. Mo. 1995)). 63. Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997); see also Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001) ("[Tlhe petitioner's allegations of constitutional error must be supported with new reliable evidence not availableat trial.") (emphasis added). 64. See Osborne v. Purkett, 4I1 F.3d 911, 920 (8th Cir. 2005) (denying gateway relief to a petitioner who proffered testimony which "existed at the time of trial and could have been discovered earlier had [the defendant] or his counsel diligently pursued it").

65. 378 F.3d 333, 340 (3 d Cir. 2004). HASTINGS LAW JOURNAL [Vol. 59:711

The court rejected the petitioner's claim that his testimony was "new," concluding that the innocence gateway did not provide relief to prisoners who regret the strategic decisions they made during trial. 66 The court concluded that the prisoner's testimony was a mere "repackaging of the record as presented at trial," and it denied relief in light of its concern that a different outcome would "set the bar for 'actual innocence' claimants so low that virtually every such claimant would pass through it.,,67

III. COURTS SHOULD ADOPT THE "NEWLY-PRESENTED" EVIDENCE RULE The federal courts should adopt the newly-presented evidence rule. The newly-presented rule permits habeas courts to evaluate all reliable evidence which was wrongly excluded by defense counsel, the petitioner, or the trial judge. The newly-presented rule is preferable for three reasons. First, the rule meaningfully accounts for the real-world circumstances that attend erroneous convictions. Second, the rule adequately accounts for considerations such as federal-state comity, judicial economy, and the finality of judgments. Third, the rule is the most logical interpretation of Schlup and House.

A. THE NEWLY-PRESENTED RULE IMPLICATES THREE FORMS OF EXCULPATORY EVIDENCE There are three forms of evidence implicated by the newly-presented evidence rule. The first type is evidence which was not presented to the finder of fact due to the conduct of the petitioner's trial counsel. The second is evidence which was not presented to the fact finder due to decisions made by the petitioner. The third is evidence excluded by the trial judge. i. Evidence Excluded Due to the Conduct of Trial Counsel The majority of exculpatory evidence wrongly excluded at trial is likely attributable to the actions of defense counsel. Overworked or incompetent attorneys sometimes fail to conduct diligent investigations which would reveal exculpatory evidence. In other instances, defense attorneys may fail to introduce exculpatory evidence even if the attorneys are aware of its existence. For example, defense attorneys often counsel their clients not to take the stand, even if the finder of fact could benefit from hearing the defendant's side of the story. Because defense attorneys control the presentation of their clients' cases, the majority of wrongly excluded exculpatory evidence is likely excluded due to the actions of defense counsel. 2. Evidence Excluded by the Conduct of the Petitioner The second category of evidence implicated by the newly-presented rule

66. Id. 67. Id. at 341. February 2oo8] FACING UP TO WRONGFUL CONVICTIONS is evidence which was not admitted at trial due to the conduct of the petitioner. The form of evidence in this category is the petitioner's own testimony. In the majority of cases, the petitioner alleges that he failed to testify as the result of bad advice from his attorney. In rare instances, however, the petitioner is personally responsible for his decision not to testify. There are myriad reasons why innocent defendants do not testify. One reason is that many innocent defendants plead guilty and never reach the trial stage.68 Other times, even if the case reaches trial, innocent defendants decline to testify because they are confident in their innocence and decide to put the state to its proof. Some innocent defendants choose not to take the stand because they have criminal records and are afraid that testifying will open the door for the to admit prejudicial prior convictions into evidence.69 Many times, innocent defendants decline to testify because they are uneducated or mentally ill, and testifying will create a risk that they will make a poor impression on the jury, or that the prosecutor will trick and confuse them on cross-examination.7" Many innocent defendants have already provided false confessions to the police.7' Subjecting these vulnerable individuals to further interrogation in front of the jury is ill- advised. Last, some defendants from ethnic minority communities believe that testifying in front of predominantly white juries does more harm than good because perceived cultural and ethnic differences will bias white jurors against them.72 3. Evidence Excluded by the Trial Judge It should be noted that, as a literal matter, evidence excluded by the trial judge falls within the ambit of the newly-presented rule. Because the Supreme Court explicitly approved the use of all evidence regardless of admissibility at trial, however, judicially excluded evidence is not implicated by the newly-presented rule. The Supreme Court explicitly endorsed the admissibility of this form of evidence when it cited Judge

68. Paul Craig Roberts, The Causes of Wrongful Conviction, 7 INDEP. REV. 567, 572 (2003). 69. See Fed. R. Evid. 6o9 (permitting the impeachment of a 's credibility through the of prior convictions); see also Stephen J. Schulhofer, Some Kind Words for the Against Self-Incrimination, 26 VAL. U. L. REV. 311, 330 (199). 70. See Schulhofer, supra note 69. 71. Richard A. Leo et al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2oo6 Wis. L. REv. 479, 484 (noting that between 20% and 25% of documented DNA exonerations involved wrongful convictions that "resulted in whole or in part from police-induced false confessions"). 72. Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 OHIO ST. J. Cium. L. 121, 126 (2oo6) ("White jurors more readily believe that blacks will continue to be dangerous in the future and are more likely to ignore mitigating evidence, treating instances of the defendant's bad character as more representative of the 'true character' of people of 'his kind' than instances of good behavior."). HASTINGS LAW JOURNAL [VOL. 59:711I

Friendly's law review article in both Schlup and House.73

B. THE PROBLEM OF WRONGFUL CONVICTIONS COMPELS THE ADOPTION OF THE NEWLY-PRESENTED RULE In evaluating gateway claims, habeas courts should be permitted to review all reliable evidence that was not presented to the finder of fact. The purpose of the miscarriage of justice exception is to facilitate review of innocent prisoners' constitutional claims. Consistent with this goal, the gateway doctrine should account for the real-world circumstances that attend erroneous convictions. Admitting all reliable evidence wrongly excluded from trial helps accomplish this goal by correcting the critical evidentiary defects that contributed to the wrongful conviction in the first place. The newly-presented evidence rule gives meaningful content to the gateway doctrine by enabling habeas courts to make comprehensive assessments of the circumstances surrounding each petitioner's case. i. Requiring Prisonersto Acquire New Evidence After Conviction Is Unrealistic An obvious advantage of the newly-presented rule is that it accounts for the difficulty of obtaining exculpatory evidence post-conviction. Experience demonstrates that a prisoner's inability to produce new exculpatory evidence does not necessarily confirm the person's guilt.74 The newly-presented rule furthers the protection of individual liberty because it enables habeas courts to identify a greater number of wrongly convicted prisoners than would otherwise be possible. There are myriad problems associated with relying solely on newly- discovered evidence to exonerate the wrongly convicted. DNA exonerations provide one example. Although post-conviction DNA testing is among the most reliable methods of exoneration, not every case involves DNA evidence. 75 Even in cases in which DNA evidence would be relevant to the person's guilt or innocence, DNA samples are frequently unavailable. 76 Although DNA evidence is generally more reliable than other physical evidence, DNA samples are also subject to degradation and destruction due to bad faith, neglect, and the passage of time.77 Overemphasis on newly-discovered DNA evidence is therefore ill- advised.

73. See Schlup v. Delo, 513 U.S. 298, 327-28 (1995); see also House v. Bell, 126 S. Ct. 2064, 2078 (2oo6). 74. See Marshall, supra note 18, at 84 (noting that most exonerations result from exculpatory evidence discovered "through completely unpredictable events extrinsic to the checks and balances intrinsic to the legal system"). 75. See Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisonersand Newly- Discovered Non-DNA Evidence in State Courts, 47 ARIZ. L. REv. 655, 656 (2oo5). 76. Id. at 656-57. 77. Id. February 2008 FACING UP TO WRONGFUL CONVICTIONS

It is also impractical to expect new witnesses, dishonest law enforcement officials, and unidentified guilty parties to reveal themselves. It is impossible to know the secret motives of those who may step forward. The likelihood of exculpatory witnesses identifying themselves is particularly low if exonerating a defendant would place the new witness at risk of prosecution. It is likewise unrealistic to assume that every criminal defendant has been afforded zealous representation, even if the deficiencies in representation do not necessarily rise to the level of ineffective assistance of counsel. It is well known that public defenders are chronically under- funded and overworked."5 It is also notable that many high-profile exonerations result from the efforts of dedicated journalists, students, and other non-attorney actors, rather than from the efforts of defense lawyers.79 These facts suggest that inadequate representation is far more prevalent than is commonly known. Last, it takes several years for a prisoner to exhaust his state remedies and file a procedurally barred habeas petition. 8° Even if the judiciary were not plagued by chronic appellate delays,"' it would take years for the average prisoner to file a procedurally barred habeas petition and attempt to pass through the innocence gateway. It is common sense that the likelihood of discovering exculpatory evidence drops over time. As the Supreme Court has recognized, defendants can be prejudiced over time by the death and disappearance of witnesses, the fading of memories, and the destruction or degradation of physical evidence." In light of these difficulties, the newly-presented evidence rule allows courts to flush out a greater number of innocent prisoners. This result is consistent with the purpose of the miscarriage of justice exception. 2. The Newly-Presented Evidence Rule Results in Greater Protectionof Individual Libertiesfor the Wrongly Convicted With the exception of the petitioner in House v. Bell, every successful gateway petitioner since Schlup has established his innocence through a combination of (I) newly-presented evidence, (2) newly-discovered evidence, and (3) a re-examination of the evidence adduced at trial. These

78. See Mary Sue Backus & Paul Marcus, The in Criminal Cases, a National Crisis, 57 HASTINGS L.J. 1031, 1036 (2006). 79. Marshall, supra note i8, at 84. 8o. In Schlup, for example, the murder at issue occurred in February 1984. Schlup v. Delo, 513 U.S. 298, 301 (1995). Schlup's actual innocence claim was not ultimately resolved on remand until December 1995, nearly twelve years later. Schlup v. Delo, 912 F. Supp. 448, 455 (E.D. Mo. 1995). 81. REPORT OF THE FEDERAL COURTS STUDY COMMITrEE 109-1o (199o), reprint in 22 CONN. L. REv. 733 (199o) ("However people may view other aspects of the federal judiciary, few deny that its appellate courts are in a 'crisis of volume' that has transformed them from the institutions they were even a generation ago."). 82. See Doggett v. United States, 505 U.S. 647, 654 (1992). HASTINGS LAW JOURNAL [Vol. 59:711I successful gateway petitioners demonstrate that the newly-presented evidence rule is instrumental 83 in identifying innocent prisoners, as illustrated in Souter v. Jones. In Souter, the Sixth Circuit found the gatewa€ claimant actually innocent based in part on newly-presented evidence. In addition to re- examining the evidence introduced at trial, the court examined (i) the recantations of two of the prosecution's former expert witnesses; (2) new statements from a bottle manufacturer that its product could not have formed the sharp edge that inflicted the fatal wound; and (3) exculpatory photographs which were available at the time of trial but were not presented to the jury.58 The court held that the petitioner's new evidence cast substantial doubt on the petitioner's guilt and undermined the court's confidence in the result at trial.6 The first piece of "new" evidence in Souter-the expert witnesses' recanted testimony-qualifies as "newly-discovered" evidence because the experts did not formulate their new opinions until after Souter was 8 convicted. ' This evidence did not, therefore, exist at the time of trial and was newly-discovered for the purposes of the petitioner's gateway claim. By contrast, the evidence from the bottle manufacturer was newly- presented. Although the petitioner's trial counsel did not obtain a statement from the bottle manufacturer prior to trial, there is little doubt that he or she could have done so through the exercise of due diligence. This evidence would therefore have been excluded under a newly-discovered evidence rule. The exculpatory photographs were likewise newly-presented. The prosecution argued that because defense counsel knew the photos existed at the time of trial, the photos did not constitute "new" evidence. 8 The Souter court disagreed, holding that even if the photos were available at the time of trial, "there is no evidence in the record that they were ever presented to the jury and therefore, are new evidence in support of Souter's actual innocence claim under Schlup."' The court therefore admitted the photographs after explicitly characterizing the pictures as newly-presented rather than newly-discovered evidence. In the absence of this newly-presented evidence, the Souter court would not have found the petitioner to be innocent. Indeed, it was the cumulative weight of the newly-presented, newly-discovered, and

83. 395 F.3d 577 (6th Cir. 2005). 84. Id. at 590. 85. Id. at 590-92. 86. Id. at 597. 87. Id. at 592 (noting that if the expert's opinion has changed, "the evidence itself has changed, and can most certainly be characterized as new."). 88. Id. at 596 n.9. 89. Id. February 2oo8] FACING UP TO WRONGFUL CONVICTIONS previously introduced trial evidence that tipped the scale in the petitioner's favor.' ° The newly-presented rule was therefore instrumental in the court's determination because the combined effect of all the evidence empowered the court to discover the true circumstances of the case. The great majority of other decisions have arrived at similar outcomes.9 3. At a Minimum, the Newly-Presented Evidence Rule Should Apply to All Evidence Tenably Claimed to Have Been Excluded Due to the Errorsof Defense Counsel The Seventh Circuit's decision in Gomez illustrates the importance of admitting all evidence tenably claimed to have been excluded due to the actions of defense counsel. In Gomez, the petitioner asserted the miscarriage of justice exception on a procedurally barred habeas petition.9" The prisoner based his actual innocence claim on his own testimony, which was not presented at trial.93 Gomez's underlying constitutional claim was ineffective assistance of counsel. This claim was due to his attorney's alleged failure to advise or call Gomez to testify.94 The Gomez court admitted the petitioner's testimony, holding that "where the underlying constitutional violation claimed is the ineffective assistance of counsel premised on a failure to present evidence, a requirement that new evidence be unknown to the defense at the time of trial would operate as a roadblock to the actual innocence gateway."95 The Gomez court thus recognized that where the prisoner asserts ineffective assistance of counsel for failure to introduce exculpatory evidence, the newly-discovered rule would strip the miscarriage of justice exception of its express purpose -identifying innocent prisoners. Therefore, at a minimum, habeas courts should be permitted to review all evidence tenably claimed to have been excluded due to the errors of defense counsel.

C. THE NEWLY-PRESENTED RULE DOES NOT UNDERMINE FEDERAL-STATE COMITY, JUDICIAL ECONOMY, OR THE FINALITY OF STATE JUDGMENTS Critics assert that the newly-presented evidence rule erodes federal- state relations; that it wastes scarce judicial resources; and that it undermines the finality of criminal judgments. 6 As demonstrated above, allowing courts to examine all reliable, newly-presented evidence does

o 9 . Id. at 596-97. 91. See, e.g., Smith v. Baldwin, 466 F.3d 805, 8o7 (9th Cir. 2006); Lisker v. Knowles, 463 F. Supp. 2d ioo8, 1040 (C.D. Cal. 2006); Garcia v. Portuondo, 334 F. Supp. 2d 446, 55 (S.D.N.Y. 2004). 92. Gomez v. Jaimet, 350 F.3d 673,677 (7th Cir. 2003). 93. Id. 94- Id. 95. Id. at 679-80. 96. See Hubbard v. Pinchak, 378 F.3 d 333, 341 (3d Cir. 2004). HASTINGS LAW JOURNAL [Vol. 59:711 result in the review of a larger number of procedurally barred habeas petitions than would be possible under the newly-discovered evidence rule. It is also true that whenever federal courts review state judgments, federalism, judicial economy, and finality are serious concerns.97 Despite these concerns, the Seventh Circuit's application of the newly-presented rule in Gomez illustrates that the newly-presented rule does not present a serious threat to finality, comity, or judicial economy. As noted above, the Gomez court permitted the petitioner to submit his own newly-presented testimony in an attempt to pass through the actual innocence gateway.' After reviewing the petitioner's testimony, the court declined to review the petitioner's underlying constitutional claim.99 Rather, the court noted that it is "extremely rare" for prisoners to pass through the actual innocence gateway." The court examined Gomez's new testimony with great skepticism and denied relief.'' The result in Gomez is typical.' 2 As the Schlup Court recognized, the miscarriage of justice exception is inherently tailored to account for finality, comity, and judicial economy.'" Even if a gateway petitioner is permitted to submit all newly-presented evidence, the petitioner still must convince the reviewing court that it is more likely than not that no reasonable juror would vote to convict him. If the petitioner succeeds in this difficult endeavor, the prisoner must next persuade the court to grant relief on his underlying constitutional claim. Unlike the Herrera line of cases, the miscarriage of justice exception does not automatically reverse state court judgments.' 4 Instead, because gateway claims involve procedural rather than substantive violations of the Constitution, even a favorable outcome on the underlying constitutional claim will only result in reversal if the petitioner is able to persuade the reviewing court that the error is not harmless."' Because gateway relief is so difficult to achieve, the newly-presented rule does nothing to exacerbate the minimal threat to comity, economy, and finality which inevitably inheres in the miscarriage of justice exception. Indeed, the only practical difference between the newly-presented rule and the newly-discovered rule is that the former provides the most

97. See Friendly, supra note 54, at 145-46. 98. Gomez, 350 F.3d at 679-80. 99. Id. at 68o. ioo. Id. ioi. Id. io2. See, e.g., David R. Dow et al., Is It Constitutional to Execute Someone Who Is Innocent (And If It Isn't, How Can It Be Stopped Following House v. Bell)?, 42 TULSA L. REV. 277, 399-400 (2006) (showing that, as of October 9, 2oo6, every gateway petitioner since House failed to persuade the court he was innocent). 103. Schlup v. Delo, 513 U.S. 298, 324 (i995). t04. Id. at 315. 1O5. See id. at 314-15. February 2008] FACING UP TO WRONGFUL CONVICTIONS

comprehensive record possible of the petitioner's guilt or innocence, whereas the latter does not. It is of particular importance that the judicial branch contributes to the resolution of the wrongful conviction problem by formulating legal rules that meaningfully account for actual innocence. Through the reform measures discussed above, legislatures and have in many ways taken the lead in confronting the wrongful conviction problem.I°6 While these measures are timely, laudable, and necessary, the courts should not abdicate their critical role in protecting the innocent. The judiciary's role is central for a number of reasons. First, the legislative and executive reforms are new, rare, and vary between jurisdictions.'" As a consequence, the reforms are untested, and their effectiveness may differ widely from place to place. Second, the judiciary is the sole counter-majoritarian branch in our system of government. As such, it is incumbent on the courts to lead the way in safeguarding individual liberties. This function is particularly important in the area of , where politicization frequently frustrates to bolster individual rights against the state. '°9 It is therefore the judiciary's responsibility to ensure that justice is done in its own backyard.

D. THE LANGUAGE AND RATIONALE OF SCHLUP AND HOUSE SUGGEST THAT THE SUPREME COURT WOULD ADOPT THE NEWLY-PRESENTED RULE The Seventh and Ninth Circuits' opinions in Gomez and Griffin set forth compelling arguments that the Schlup majority favored the newly- presented rule."' These courts' rationales bear little further explanation, other than to note that in adopting the newly-discovered rule, the Eighth and Third Circuits conspicuously fail to address the language in Schlup suggesting that Justice Stevens preferred the newly-presented rule rather than Justice O'Connor's newly-discovered rule. Although it is not always true that majority opinions exert greater influence than concurring opinions,"' in the interest of clarity, the better practice is to follow the majority whenever possible.

io6. See supra notes 27-34 and accompanying text. 107. See supra notes 27-34 and accompanying text. 1o8. See United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring). to9. Erik Luna, The OvercriminalizationPhenomenon, 54 Am. U. L. REV. 703, 729 (2005). I Io. See supra notes 56-61 and accompanying text. uI. See Marks v. United States, 430 U.S. I88, 193 (i977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."' (quoting Gregg v. Georgia, 428 U.S. i53, 169 n.15 (1976) (Stewart, J., plurality opinion))); Sonja R. West, Concurring in Partand Concurring in the Confusion. 104 MiCH. L. REV. 1951, 1954 (2006) ("When it is self-evident that the rationale of the primary opinion does not hold the support of five justices, it should not be treated as a majority, no matter how many justices allegedly concurred."). HASTINGS LAW JOURNAL [Vol. 59:711I

As noted above, the Eighth Circuit provides no analysis of Schlup whatsoever."2 In particular, the Eighth Circuit failed to address Schlup's emphasis on Judge Friendly's article."3 In citing Judge Friendly, the Schlup Court endorsed the position that evidence which was excluded at trial should receive review by the habeas tribunal."4 The Court reiterated this mandate in House v. Bell."5 The Eighth Circuit's position that courts should only review evidence discovered after trial is irreconcilable with the spirit of this directive. Likewise, the Third Circuit fails to address the distinction between Justice Stevens's use of "presented" and Justice O'Connor's use of "discovered."...6 Rather, the Third Circuit argues that the newly- presented rule would permit too many petitioners to pass through the actual innocence gateway."7 As emphasized above, however, the Schlup Court expressed no concern that any formulation of its rule would undermine finality and comity. Instead, the Court stressed that the fundamental miscarriage of justice exception inherently balances "the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice."'"8 The language of Schlup therefore suggests that the Supreme Court was satisfied that the actual innocence gateway inherently respects finality and comity. Because gateway relief is so rare, the introduction of newly-presented evidence does nothing to upset this balance. Finally, in adopting the liberal "more likely than not" standard of proof for adjudicating gateway claims, the Schlup Court emphasized that the "standard of proof.., reflects 'the relative importance attached to the ultimate decision"' in the case."9 This language suggests that the Supreme Court intended the gateway doctrine to err on the side of protecting individual rights in light of the grave liberty interest at stake in capital cases. The newly-presented rule is in harmony with this preference because it enables habeas courts to evaluate the most comprehensive record available.

112. See Amrine v. Bowersox, 238 F.3 d 1023, 1029 (8th Cir. 2001). 113. See id. In contrast with the Eighth Circuit, the Third Circuit suggested in Hubbard that habeas corpus courts should review evidence that was excluded by the trial judge, consistent with Schlup and Judge Friendly's reasoning. Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004). 114. Schlup v. Delo, 513 U.S. 298,327-28 (1995). 115. 126 S. Ct. 2o64, 2077 (2006) ("Schlup makes plain that the habeas court must consider 'all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under 'rules of admissibility that would govern at trial."'). The House Court did not have occasion to decide between the newly-presented and newly-discovered rules, because House's new evidence was all discovered post-conviction. Id. at 2038. II6. See Hubbard,378 F.3d at 339-41. 117. Id. i8. Schlup, 530 U.S. at 324. i9. Id. at 325 (quoting In re Winship, 397 U.S. 358,370 (97o) (Harlan, J., concurring)). February 2008] FACING UP TO WRONGFUL CONVICTIONS

CONCLUSION The legitimacy of our criminal justice system depends on our dedication to repairing its imperfections. Although the Supreme Court has been generally unmoved by the data on wrongful convictions, ' some recent decisions recognize that our system convicts the innocent.' The newly-presented evidence rule flows from the principle articulated in Winship that it is preferable to free the guilty than convict the innocent. 2' Adopting the newly-presented evidence rule will add meaningful content to this ideal. Without the newly-presented evidence rule, our justice system will continue to convict the innocent and fail to fully account for that injustice in adjudicating habeas corpus petitions. This twofold error runs counter to our most basic notions of justice, and it must not endure.

120. See, e.g., Kansas v. Marsh. 126 S. Ct. 2516 (2o06); Herrera v. Collins, 506 U.S. 390 (993). 121. See Atkins v. Virginia, 536 U.S. 304, 32o n.25 (2oo2) ("[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. These exonerations have included at least one mentally retarded person who unwittingly confessed to a crime that he did not commit."); see also Marsh, 126 S. Ct. at 2544-46 (Souter, J., dissenting). 122. In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). 730 HASTINGS LAW JOURNAL [Vol. 59:711